ANAND SWARUP Vs. THIRD ADDL DISTRICT JUDGE MUZAFFARNAGAR

JUDGEMENT

(1.) The petitioner is a tenant in a portion of a house owned by respondent No. 3 Banarsi Das Agarwal, on payment of Rs. 37/- p. m. as rent. On 27-6-1977 Banarsi Das Agarwal sent a notice to the petitioner stating that he was in arrears of rent for the period 1-7-1975 to 31-5-1977 amounting to Rs. 851/ -. In that notice it was also demanded that in addition to the said rent, the petitioner should also pay the water-tax at the rate of 71/2% for the same period. This notice was served upon the petitioner on 29-6- 1977. The petitioner then remitted a sum of Rs 893. 62 p. to the respondent by money order. At the same time he sent a letter to the respondent mention ing that the rent payable by him was Rs. 25/- p. m. only as entered in municipal records and that water-tax could be charged from him on the basis of that rental only. He was, accordingly, paying the money under protest and that the respondent should return to him the amount which was in excess of what was really due to him, failing which he would be compelled to take legal pro ceedings. The petitioner has in the writ petition given a breakup of the amount of Rs. 893. 62 p. tendered by him by stating that he had tendered of a sum of Rs. 37/- as rent for the month of June 1977 and Rs. 5. 62 for the water-tax for the period 1-4-1977 to 30-6-1977. The respondents then filed a suit for the ejectment of the petitioner inter alia on the ground that the petitioner, who was in arrears of rent for more than 4 months had failed to pay the same to the land lord within one month of the date of service of the notice of demand. Both the trial Court as also the revisional Court held that as the peti tioner did not tender the entire rent that was due from him it could not be held that the entire arrears of rent stood paid up, specially when the respondent as soon as he came to know that the tender made by the petitioner was con ditional, he took steps to return the money. Besides the petitioner was liable to pay water tax at the rate of 71/2% treating the rental value of the portion in his occupation as Rs. 37/- p. m. and not Rs. 25/- p. m as claimed by him. In the result, both the two Courts held that the petitioner had defaulted in paying the rent and was liable to be ejected. Being aggrieved, the petitioner has approached this Court for relief under Article 226 of the constitution. According to the petitioner the two Courts below were wrong in hold ing that the rent tendered by the petitioner was liable to be ignored because in a letter sent along with the money order he had stated that the money had been sent under protest and that the respondent was liable to refund the excess payment made by him. According to him the entire rent for the period 1-7-1977 to 31-5-1977, amounting to Rs. 851/-had been sent within one month of receipt of notice of demand by him. In the circumstances, the petitioner cannot be treated as a defaulter and no decree for ejectment can be passed against him. Learned counsel for the respondents did not accept that' the tender made by the petitioner was valid and contended that the petitioner being admittedly in arrears of rent and house tax for the period, 1-7- 1977 to 31-5-1977 did not while paying the arrears of rent for the said period, pay the water tax payable by him for the period 1-7-1977 to 31-5-1977 within one month's of notice of demand. He was thus a defaulter and was liable to be ejected. Learned Counsel for the petitioner refuted the submissions made by the respondent and contended that in view of the provisions of U. P. Act No. 13 of 1972 the petitioner would be liable to ejectment if he did not pay the arrears of rent demanded from him. He is not so liable for not paying the arrears of water- tax due from him as according to him, water-tax is not a part of the rent. Accordingly, even if the petitioner did not clear his water-tax liability, he was not liable to be ejected. Learned Counsel for the respondent invited my attention to Section 7 of the U. P. Urban Buildings (Regulation of Letting of Rent & Eviction) Act, 1972, which runs thus:- "liability to pay taxes:- Subject to any contract in writing to the contrary, but notwithstanding anything contained in the Section 179 of the U. P. Nagar Mahapalika Adhiniyam 1959 (U. P. Act II of 1959) or in Section 149 or in any rule made or notification issued under Section 338 of the United Provinces Municipalities Act, 1916 (U. P. Act II of 1916) or in Section (14) (J) (c) of the United Provinces Town Areas Act, 1914 (15. P. Act II of 1914) the tenant shall be liable to pay the landlord in addition to and as part of the rent, the following taxes or proportionate part thereof, in any, payable in respect of the building or part under his tenancy, namely, (a) The water Tax; (b ). . . . . . . . . . . . . . . . . . . . . A perusal of this Section shows that the Legislature has made the tenants statutorily liable for payment of water-tax to the landlord. Further, it has created a fiction that for purposes of the Act the obligation to pay water-tax is to be treated as a part of rent payable to the landlord. In view of this statutory provisions it has to be taken that the water-tax liability created by the. Act forms part of the rent payable by the tenant to the landlord and the consequences that follow non-payment of rent also follow non-payment of water-tax. From the averments made in the writ petition itself it is clear that the petitioner did not clear the entire arrears of water-tax payable by him for the period 1-7-1975 to 31-3-1977 after receipt of notice of demand' for the same by him. It is thus clear that as he did not pay the entire amount of rent and water- tax demanded from him within one month of service of notice of demand on him, he was liable to be ejected. Learned counsel for the petitioner next contended as the petitioner had paid the water-tax for the period 1-7-1975 to 31-3-1977 directly in the Municipal Board (the averment made in paragraph of the writ petition ). By making the said payment his liability to pay water-tax to the landlord stood discharged. Accordingly, if he did not directly pay the same to the land lord, after receipt of notice, it could not be said that he was in arrears in res pect of water-tax. There would have been substance in this submission if it could be shown that the petitioner had actually paid water-tax for which he was liable for the period 1-7-1975 to 31-3-1977 directly in the Municipal Board. However, this assertion is denied in the counter affidavit wherein it is mentioned that water-tax for the period 1-7-1975 to 31-3-1977 was paid by the respondent and not by the petitioner. In support of his case the respondent had filed the receipt for such payment obtained by him in the trial Court. The petitioner did not file any receipt from the Municipal Board evidencing payment by him, of water-tax for the period 1-7-1975 to 31-3-1977. In these circumstances, it is not possible to accept the case of the petitioner in this regard. In the result, I find that the petitioner did not discharge the entire liability in respect of arrears of rent within one month's of service of notice of demand upon him and as such he was a defaulter and the provisions of Section 20 of the U. P. Act No. 13 of 1972 did not- bar passing of a decree for his eject ment. In this view it is not necessary for me to express any opinion on the question whether the tender made by the petitioner to the respondent being a conditional tender was valid or not. "the petitioner is granted time upto 31-7-1980 to vacate the accom modation in dispute provided he deposits the entire amount of rent damages due upto 31-7-1980 with the executing Court within a period of 5 weeks from today's date and further gives an undertaking before the executing Court that he shall hand over the vacant possession of the accommodation to the respondent on or before 31-7-1980 within the same period. In case of default of any of the conditions mentioned above, the decree would become executable forthwith. " In the result, the petition fails and is dismissed with costs. .